Issue 5

WHEN PARENTS SEPARATE AFTER AN ABUSIVE RELATIONSHIP, SHOULDN'T FATHERS HAVE AS MUCH RIGHT AS MOTHERS TO BE GRANTED PHYSICAL CUSTODY OF AND VISITATION RIGHTS WITH THEIR CHILDREN?

Tensions exist between children's need for contact with their father and their need to be protected from the physical, sexual and psychological abuse that is common in families where there has been other forms of violence such as woman abuse.

Although most people believe that fathers should have equal access to their children after the termination of a relationship between the parents, the equal-access option is based on the assumption that the fathers will act in their children's best interests. However, that is a naive assumption in situations where family violence has occurred.

Fathers who batter their children's mothers can be expected to use abusive power and control techniques to control the children, too. In many of these families, prior to separation, the men were not actively involved in the raising of their children. To gain control after the marital separation, the fathers fight for the right to be involved. Often children who have been exposed to violence in the family are frightened to confront their father's negative or abusive behavior, and mothers cannot protect them. Sometimes the father tries to alienate the child from the mother by using money and other enticements, negative comments, or restricted access to the telephone during visitation with him. Other times, fathers may threaten or actually kidnap the child to punish the mother for leaving, or to try to force her to return.

Most people, including the battered woman herself, believe that when a woman leaves a violent man, she will remain the primary caretaker of their children. Family courts, however, may not consider the history of woman abuse relevant in awarding custody. Recent studies suggest that an abusive man is more likely than a nonviolent father to seek sole physical custody of his children and may be just as likely (or even more likely) to be awarded custody as the mother. Often fathers win physical custody because men generally have greater financial resources and can continue the court battles with more legal assistance over a longer period of time.

Family courts frequently minimize the harmful impact of children's witnessing violence between their parents and sometimes are reluctant to believe mothers. If the court ignores the history of violence as the context for the mother's behavior in a custody evaluation, she may appear hostile, uncooperative, or mentally unstable. For example, she may refuse to disclose her address, or may resist unsupervised visitation, especially if she thinks her child is in danger. Psychological evaluators who minimize the importance of violence against the mother, or pathologize her responses to it, may accuse her of alienating the children from the father and may recommend giving the father custody in spite of his history of violence.

Some professionals assume that accusations of physical or sexual abuse of children that arise during divorce or custody disputes are likely to be false, but the empirical research to date shows no such increase in false reporting at that time. In many instances, children are frightened about being alone with a father they have seen use violence towards their mother or a father who has abused them. Sometimes children make it clear to the court that they wish to remain with the mother because they are afraid of the father, but their wishes are ignored.

Research indicates that high levels of continued conflict between separated and divorced parents hinders children's normal development. Some practitioners now believe that it may be better for children's development to restrict the father's access to them and avoid continued danger to both mothers and the children.